Abstract

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The Biology of the Broadcast Flag

The Motion Picture Association of America and its content affiliates would like all consumer electronics and information technology companies to innovate according to the rules - ensuring that Hollywood's movies are specially protected from unauthorized redistribution through adherence to a broadcast flag scheme (proposed to be implemented by the FCC) and through anticipated legislation that will require U.S. manufacturers to follow policies designed to ensure that protection signals are not lost in any digital-analog-digital conversions (so that the analog hole is closed).

The arguments made by the MPAA and its content colleagues in support of national (and, eventually, global) control over the functionality of the devices that manipulate content are fundamentally troubling for the future of innovation and the future of law itself. And Social Darwinism of the kind being invoked by the MPAA has a long history in the U.S., and has been used as justification for any number of ultimately undesirable end-goals.

But the content industry has hit on a very important way of thinking about law. We should pay attention to the evolutionary ecosystem of the law as the background medium in which innovation occurs, business models evolve, and social factions grow and prosper. This article argues that preserving the flexibility and evolutionary richness of the code/law background medium (code/law) should be our aim. We need to avoid both codes and laws that unduly freeze innovation, so that code/law can continue to evolve. Competitive DRM systems - self-enforcing private ordering - are a better solution in this context than harmonized code/law.